A. Purpose: The purpose of this section is to provide for deviations from the literal provisions of this title in instances where their strict enforcement would cause undue hardship because of the circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this title. A variance shall not be permitted for the establishment or expansion of a use.
B. Initiation Of A Request For A Variance: Any person owning property, or having documented interest therein, may initiate a request for a variance for that property in conformance with the provisions of this title. (Ord. 230, 5-6-2002)
C. Filing An Application For A Variance: The property owner or designated representative shall complete the required application for a variance which may be obtained from the zoning official. Such application shall be accompanied by a fee as established in section 3-8-1 of this code. The application for a variance shall be filed with the zoning official and a zoning permit with proper fees must be submitted at the same time. The zoning official, after review of the application, shall have the authority to request additional information from the applicant which is deemed necessary for a proper review by the planning commission. Should no further information be deemed necessary, or upon receipt of all additional information, the zoning official shall forward the request for a variance to the planning commission. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)
Variance requests for the same property shall not be heard within two (2) months of a previous request unless it can be demonstrated to the zoning official that the conditions for the variance have changed.
D. Time Frame For Permit Approval: An official zoning decision will be made on permits within a sixty (60) day time frame. The sixty (60) day time frame starts from the date the completed city application, all required information, and fees are submitted to the zoning official. If the application does not contain all information required by law or by a previously adopted rule, ordinance or policy, the zoning official will provide written notification within ten (10) business days telling the applicant "what information is missing". The clock will restart on the sixty (60) days once the information is received by the zoning official.
E. Extension Of Permit Approval Time Frame: The city may extend the sixty (60) day limit for an additional sixty (60) days. The zoning official must give the applicant written notice of the extension before the initial sixty (60) day period ends. The written notice must indicate two (2) things: the reason for the extension and the length of the extension (up to an additional 60 days). Reasons for an extension may include, for example, the need for additional staff review of complex issues or the need for additional public meetings or planning commission review.
When state law requires the preparation of an environmental assessment worksheet (EAW) or an environmental impact statement (EIS) the deadline is extended until sixty (60) days after the review process is completed.
F. Public Hearing: Upon receipt of an application for a variance, the chair of the board of adjustment shall set the time and date for a public hearing. Notice of said hearing shall consist of a legal property description and/or a summary description of the request, and be published in the official newspaper at least ten (10) days prior to the hearing. In the case if variances affecting an area of five (5) acres or less, a written notice of said hearing shall be mailed at least ten (10) days prior to the hearing to all owners of land within three hundred fifty feet (350') of the property to which the variance relates. A copy of the hearing notice and a list of the property owners and addresses to which the notice was sent shall be attested and made a part of the record of the proceeding. Failure of a property owner to receive said notice, or failure to provide mailed notice to individual property owners, or defects in the notice shall not invalidate any such proceedings as set forth within this title provided a bona fide attempt has been made to comply with the notice requirements of this title.
Variances may require the applicant to provide a lot survey.
G. Consideration Of Request For Variance By The Board Of Adjustment: The applicant or representative thereof may appear before the board of adjustment to answer questions concerning the proposed variance. The board of adjustment shall have the authority to request additional information from the applicant or to retain expert testimony with the consent and at the expense of the applicant. Failure by an applicant to supply all necessary supportive information may be grounds for denial of the request.
The board of adjustment shall make findings of fact and shall decide whether to approve or deny the request for variance within sixty (60) days of the receipt of the completed application and fees. A variance to this title shall not be granted unless approved by a majority of the members of the board of adjustment.
A variance from the terms of this title shall not be granted unless the board of adjustment makes findings, following Minnesota statutes chapter 462, and based upon competent material and substantial evidence on the whole record that:
1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district;
2. Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this title;
3. Approval of the variance as requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings in the same district under the same conditions;
4. Special conditions or circumstances do not result from the actions of the applicant;
5. Authorization of the variance will not be of substantial detriment to the neighboring property and will not be contrary to the spirit and purpose of this title; and
6. Neither a nonconforming use of neighboring lands, structures, or buildings in the same district, nor permitted uses of land, structures, or buildings in other districts shall be considered ground for the issuance of a variance.
H. Conditions Of Approval: In authorizing a variance, the board may, in addition to the specific conditions of approval called for in this title, attach such other conditions regarding the location, character, landscaping, or treatment reasonably necessary to further the intent and spirit of this title and the protection of the public interest.
I. Cancellation Of Variances: Unless otherwise specified by the board of adjustment at the time it is authorized, a variance shall expire if the applicant fails to utilize such variance within one year from the date of its authorization.
J. Appeals: To appeal a decision of the board of adjustment, a written notice of appeal must be filed with the city within forty five (45) days of the decision of the board of adjustment. Appeals to the city council and appeals from the city council's decision shall be in accordance with the procedures for appeals from the board of adjustment set forth in section 10-3-6 of this chapter.
Any person or persons or any taxpayer, department, board, or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within forty five (45) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statute may be from time to time amended, supplemented, or replaced.
Excerpt of Minnesota statutes chapter 462: "To hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. "Undue hardship" as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance. Undue hardship also includes, but is not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 2, when in harmony with the ordinance. The board of appeals and adjustments or the governing body as the case may be, may not permit as a variance any use that is not permitted under the ordinance for property in the zone where the affected person's land is located. The board or governing body as the case may be, may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The board or governing body as the case may be may impose conditions in the granting of variances to insure compliance and to protect adjacent properties."
Chart 4: Variance Process
(Ord. 230, 5-6-2002)